An administrative judge asks whether he/she may permit a full-time judge to
serve as supervising judge of the criminal trial courts in the same multi-county
judicial district “where the [judge’s] adult emancipated [child] is a non supervising
trial Assistant District Attorney at the felony level.”

A judge must always avoid even the appearance of impropriety (see 22 NYCRR
100.2) and must always act to promote public confidence in the judiciary’s integrity
and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not allow family,
social, political or other relationships to influence the judge’s judicial conduct or
judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in
which the judge’s impartiality might reasonably be questioned (see 22 NYCRR
100.3[E][1]) or in other specific circumstances as required by rule or by law (seegenerally id.; Judiciary Law §14).

The question presented is, in essence, whether the proposed supervising
judge’s familial relationship with a prosecutor would create an appearance of
impropriety, either directly (e.g. by conflicting or interfering with the judge’s ability
to perform his/her duties as a supervising judge) or indirectly (e.g. by causing a need
for frequent disclosures or disqualification on the part of the judges subject to that
judge’s supervision).

Preliminarily, the Committee notes that, although a judge whose relative
within the fourth degree of relationship is an assistant district attorney may not
preside in matters in which his/her relative appears (see 22 NYCRR 100.3[E][1][e]),
the judge may nonetheless preside in other criminal matters in which the relative has
had no involvement (see Opinion 11-131). That is, a judge is not automatically
disqualified from presiding in criminal matters merely because a relative is a
prosecutor.

The role of a supervising judge is substantially different from that of a
presiding judge because, in the exercise of his/her responsibilities, a supervising
judge is removed from the adjudication of individual cases. According to the Unified
Court System’s website, supervising judges generally are “responsible for assisting
[a]dministrative [j]udges in the on-site management of the trial courts, including
court caseloads and personnel and budget administration” (seehttp://www.nycourts.gov/admin/ directory.shtml [Jan. 9, 2014]). Supervising judges
“manage a particular type of court within a county or judicial district” (id.).

In the Committee’s view, the fact that a supervising judge’s emancipated adult
child is a prosecutor in certain felony matters within one county is not likely to
create an appearance of impropriety with respect to the judge’s management of the
overall criminal court caseloads and personnel of a judicial district or the
administration of the criminal courts’ budgets. Indeed, the Committee expects that
a supervising judge of the criminal trial courts in a particular judicial district will
handle these and other such administrative issues based on the court system’s needs
and frequently on a macroscopic level across the entire judicial district. Thus, there
appears to be no “direct” conflict or appearance of impropriety under the facts
presented based on the proposed supervising judge’s familial relationship with an
assistant district attorney (see 22 NYCRR 100.2).

Moreover, the Committee believes there will be no “indirect” conflict resulting
from a need for frequent disclosure or disqualification of other criminal court judges
within the judicial district. In Opinion 11-124, certain judges within a judicial district
stated that “an attorney who frequently appears before each of us [is] married [to]
the [a]dministrative [j]udge for our district” (Opinion 11-124). The inquiring judges
were particularly “concerned about a possible appearance of impropriety ‘given the
volatile nature of the matters which we must adjudicate’” (id.). However, the
Committee advised that (id.):

the marital relationship of the inquiring judges’ district administrative
judge is sufficiently remote from the inquiring judges that it does not, in
and of itself, create any reasonable appearance of impropriety for them
and thus neither disclosure nor disqualification is required. In reaching
this conclusion, the Committee is mindful that each judge must search
his or her conscience and determine whether recusal is the appropriate
course to be followed. Where disqualification is not mandatory,
however, it remains a “discretionary decision within the personal
conscience of the court” (People v. Moreno, 70 NY2d 403, 405 [1987]).

Thus, the Committee concluded that a judge may preside in a proceeding in
which his/her administrative judge’s spouse appears as an attorney, in the absence of
any other disqualifying factor and assuming he/she can be fair and impartial, even
over the objection of a party or counsel (see id.). The judge is not required to
disclose that the attorney is the administrative judge’s spouse, but has the discretion
to do so, without incurring any obligation to disqualify him/herself (see id.).1

Here, too, the Committee believes that the family relationships of a
supervising judge are also “sufficiently remote” from the judges subject to his/her
supervision that they “[do] not, in and of [themselves], create any reasonable
appearance of impropriety for” the supervised judges (Opinion 11-124).

Thus, the Committee concludes that, under the facts presented, a full-time
judge may serve as supervising judge of the criminal trial courts in the same judicial
district where the judge’s adult emancipated child is a non-supervising trial assistant
district attorney.

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1 Both Opinion 11-124 and the present inquiry involve the first degree of
relationship, whether by consanguinity (parent/child) or affiliation (spouses). Unlike
an emancipated adult child, however, spouses “ordinarily reside in the same
household and maintain both an emotional and financial relationship” (Opinion 12-72).